A patchwork post for your Friday

Today’s content will be an original recipe of (1) part shameless self-promotion; (2) two parts serious recommendations to read the writings of others; and (3) pop culture recommendations for your downtime this weekend.

First, the shameless. I am pleased to announce the plan for this year’s Ethics Roadshow. Here’s the promotional piece you will soon see making the rounds to explain this year’s endeavor.

This is the 13th year that Brian Faughnan is performing the Ethics Roadshow for the TBA, but that is NOT actually the reason for the “13 Reasons Why” title. This year’s program “Ethics Roadshow 2017 The Mixtape: Thirteen Reasons Why Ethics Issues are More Complicated Than Ever.” is so-titled because of the presenter’s slavish devotion to being influenced by pop culture.

This past year, a highly controversial show largely about teen suicide and its consequences aired on Netflix. “13 Reasons Why,” was based on a much less controversial book but the series was heavily criticized for – among other things – violating the “rules” in the world of television for how (and how not) suicide is to be depicted. Questions, of course, exist about whether such rules are outdated in a day and age when it is as easy as surfing the Web for someone, even a teenager, to find such information.

Questions also exist in modern law practice about whether certain ethics rules are outdated, and we will spend some time talking about that issue and related topics. We will also discuss the problems with substance abuse, stress, and mental health issues that plague our profession and put our members at risk of self-harm at rates much higher than the general population and other professions.) The outdated technology of audiotape also plays a significant role in the Netflix series. (It is also making something of a comeback in the music industry.) We will spend time talking about the ethical obligations of lawyers when it comes to use of technology and whether some of those obligations and the risks of modern technology might create an incentive for lawyers to make use of some outdated technology in the future as a way of better protecting client information.

And, we will cover it all in a format that had its heyday when cassette tapes were king – the “mixtape.” Your presenter will curate the order of topics for you with any eye toward your three-hour listening experience.

If you are a Tennessee lawyer (or a lawyer who practices in a nearby state) interested in attending, all of the stops will take place in December 2017 and you can find them and register for them at these links: Memphis,Nashville, Knoxville, and Chattanooga. You can also register for video broadcasts of the program in Jackson and Johnson City.

In terms of reading recommendations, go check out yesterday’s post from Karen Rubin over at The Law for Lawyers Today on a follow up to an issue I’ve written about – the problems with protecting client confidentiality in a world in which border agents are demanding access to electronic devices and their contents. Karen writes about a lawsuit filed by an organization near and dear to me that is challenging the practice. Also go check out the latest blogpost from Avvo’s General Counsel, Josh King, about the intersection of First Amendment issues and the issuance of ethics opinions. While I don’t know the details of the discussion at a New York event he references, I do know some of the players that were there and I can’t help but wonder if what Josh is interpreting as a bad take on the issue of constitutional challenges and certain concepts being settled actually stems from a more fundamental disagreement about whether saying lawyers cannot pay referral fees to non-lawyers is actually a restriction on commercial speech at all. If not, then it doesn’t require intermediate scrutiny in terms of any First Amendment challenge but is merely reviewed on a rational review basis. And, I’m guessing the point someone was trying to make was that others have tried and readily failed to say that states don’t have a sufficient interest in regulating the practice of law to prevent letting lawyers pay non-lawyers for making referrals.

Finally, recommendations for a more pleasurable way to spend your weekend. If you happen to have Netflix, I actually do (albeit sheepishly) recommend checking out the 13 Reasons Why series. Less sheepishly, as to the efforts to bring the mixtape concept back, I wholeheartedly recommend exploring some of the online mixtapes that Lin Manuel Miranda, the creator of Hamilton has curated. You can grab one of them at this link.

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3 thoughts on “A patchwork post for your Friday”

Great coverage on some timely topics for attorneys today. Technology changes are ripe to provide many opportunities for attorneys but not without careful consideration and understanding of a lawyers ethical obligations to protect client information.

Thanks for the shout-out, Brian. That WOULD have been a more interesting argument – that states have sufficient interest in regulating lawyers paying for referrals – but it wasn’t the argument advanced (or at least I didn’t take it that way).

And in any event, I don’t think there’s any serious argument that 1) states DO have such an interest, and 2) restrictions on paying for referrals are restrictions on commercial speech. The question is in the details of how any such restrictions are applied, and whether that application can meet the intermediate scrutiny required of commercial speech restrictions.